Citation Nr: 9924673
Decision Date: 08/30/99 Archive Date: 09/08/99
DOCKET NO. 93-28 536 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to Class II outpatient dental treatment from the
Department of Veterans Affairs.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
John Z. Jones, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1983 to May
1991.
This matter has come before the Board of Veterans' Appeals
(Board) on appeal from an unfavorable determination by the
Medical Administration Service at the Department of Veterans
Affairs (VA) Medical Center (MC) in San Diego, California.
The veteran's claims file is under the jurisdiction of the VA
Regional Office (RO) in the same city. In December 1993, a
hearing was held at the RO before the undersigned Member of
the Board. A transcript of that hearing is of record.
REMAND
In January 1996, the Board remanded this case to the VAMC for
further development. In its remand, the Board instructed the
VAMC to obtain and associate with the claims file, a copy of
the written notification concerning eligibility requirements
for VA outpatient dental treatment, including the 90-day time
limit, which the service department was required to furnish
the veteran pursuant to 38 U.S.C.A. § 1712(b)(2). The remand
noted that if this written notification to the veteran could
not be found, the VAMC should place a written statement to
that effect in the record. Thereafter, the Board directed
the VAMC to readjudicate the claim seeking Class II
outpatient dental treatment in accordance with the United
States Court of Appeals for Veterans Claims (Court) (formerly
known as the United States Court of Veterans Appeal) holding
in Mays v. Brown, 5 Vet.App. 302 and M21-1, Part IV,
paragraph 23.03a(2)NOTE 3. In August 1999 written arguments,
the veteran's representative pointed out that it does not
appear that the VAMC followed the instructions, or otherwise
attempted to obtain the requested notification or provide the
requested statement. The Court has held that where the
relevant Service Secretary has failed to comply with the
notification provision set forth in 38 U.S.C.A. § 1712(b)(2),
the application time limits set forth in 38 U.S.C.A.
§ 1712(b)(1)(B)(iii) and 38 C.F.R. § 17.123(b)(1)(i)(B) do
not begin to run. Mays, 5 Vet.App. at 306. See also Hayre
v. West, No. 98-7046 (Fed. Cir. August 16, 1999) (regarding
VA failure to procedurally comply with statutorily mandated
requirements).
Thus, the Board is unable to render a final decision in this
case. See Stegall v. West, 11 Vet.App. 268, 271 (1998)
(holding that the RO must comply with all instructions in a
Board remand before decision can be reached).
In addition, the Board notes that in his VA Form 9, dated in
December 1996, the veteran indicated that he desired another
travel board hearing. Since the veteran has been afforded a
hearing by a member of the Board on this matter, an
additional hearing by a Board member is not in order.
However, in his March 1997
VA Form 9, the veteran requested a hearing at the RO by one
of their personnel. This has not yet been accomplished.
On the basis of the above and pursuant to 38 C.F.R. § 19.9,
the Board determines that further development of the evidence
is essential for a proper appellate decision and, therefore,
remands the matter to the VAMC for the following action:
1. The VAMC should, if possible, obtain
and incorporate into the evidentiary
record in this case a copy of the written
notification to the veteran which the
service department was required to
furnish to him pursuant to 38 U.S.C.A.
§ 1712(b)(2). If this written
notification to the veteran cannot be
found, a written statement to that effect
should be placed in the record.
2. The VAMC should then, after
undertaking any appropriate additional
development, proceed to readjudicate the
claim seeking Class II outpatient dental
treatment in accordance with the Court's
holding in Mays and M21-1, Part IV,
paragraph 23.03a(2)NOTE 3. The RO should
determine if the statutory requirements
under 38 U.S.C.A. § 1712(b)(2) have been
met. If deemed necessary, an opinion
from regional counsel may be obtained.
If the determination remains unfavorable
to the veteran, the VAMC should furnish
him and his representative with a
supplemental statement of the case, in
accordance with 38 U.S.C.A. § 7105.
3. The RO should schedule the veteran
for a hearing at the RO.
After the veteran and his representative have been given an
opportunity to respond to the supplemental statement of the
case, and to present testimony at a hearing before a Board
member, the claims folder should be returned to this Board
for further appellate review. No action is required of the
veteran until he receives further notice. The purposes of
this remand are to obtain additional evidence and to ensure
due process of law. The Board intimates no opinion, either
legal or factual, as to the ultimate disposition of this
appeal.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV,
directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
M. SABULSKY
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).